Estate Planning Tips for Same-Sex Couples in the Wake of Obergefell

As was recently decided by the United States Supreme Court, same-sex couples can legally wed in every state in the country.  Not only will same-sex couples be able to marry in any state of their choosing, but they are also now afforded the same rights and benefits that have traditionally accompanied the sanctity of marriage between man and woman.  In Obergefell v. Hodges, the Supreme Court in a 5-4 ruling, legalized same-sex marriage.  Supreme Court Justice Kennedy, who wrote the majority opinion, stated that same-sex couples may exercise the fundamental right to marry.  Justice Kennedy’s majority opinion further holds that same-sex couples will no longer be denied the various benefits that states have linked to marriage.

Justice Kennedy explained that no union is more profound than that of marriage.  However, along with this profound union, comes additional and important decisions that must be made by the marrying couple, including decisions related to taxes and estate planning.  For tax planning, newly wed same-sex couples should consider the previous year’s federal and state income tax returns in order to discover if there is a positive tax arbitrage worth the time and expense of amending the prior year’s tax returns.  In addition, the current year’s federal income tax and state income tax (if applicable) opportunities should be examined.

Same-sex couples must also consider the impact that their marriage has on their estate plan, including the impact it has on prior wills, if any are in effect.  Newly wed couples must consider the impact that various marital statutes have on their estate plan, such as the spousal elective share.  The elective share grants the surviving spouse the right to receive a minimum percentage of the deceased spouse’s probate estate, regardless of what may be specifically devised to the surviving spouse in the decedent spouse’s will.  In addition, couples should explore how they want to title their assets, as well as whom they want to designate as the beneficiary of certain assets.  Overlooking the impact that marriage has on your assets would be a mistake, and is something that must be carefully considered.

In addition to the considerations mentioned above, same-sex couples will want to consider taking other actions, such as setting up a durable power of attorney in favor of the other spouse.  This document ensures the one’s wishes concerning medical care, among other things, are honored.  States have different laws that affect what a spouse is entitled to, both when the decedent spouse dies with a will and without a will.  Therefore, it is necessary to speak with an estate planning attorney to make sure that you assets are devised as you wish upon your death.  Ensuring that your assets pass to the individual or individuals to whom you want them to pass is an important aspect to consider.  This may require establishing a trust or multiple trusts in order to ensure that your wishes are fulfilled after your death.

These are just some of the steps same-sex couples should consider now that everybody is free to marry in the United States.  If you are married, considering marriage, or just want to protect your future with a will or trust, then you should speak with the experienced professionals at Chepenik Trushin, LLP, who are here to assist you with all of your estate planning needs.